Two researchers who were involved in interviewing former combatants in the Irish Troubles for a Boston College oral history project say they’ll ask the US Supreme Court to rule that interviews should not be turned over to the British government.

Ed Moloney and Anthony McIntyre announced their intentions after a decision Friday by the First US Circuit Court of Appeals in Boston not to rehear — or have the full court hear — the case. A three-judge panel of the appeals court had previously rejected their appeal in July.

“We wish to make it clear that we now intend to apply to the Supreme Court of the United States for a hearing on a case which we believe addresses issues of major constitutional importance,” the men said in a statement.

On behalf of unidentified law enforcement officials in the United Kingdom, federal prosecutors have issued subpoenas seeking information related to a 1972 slaying that the Irish Republican Army has admitted its involvement in.

The subpoenas were issued under a Mutual Legal Assistance Treaty between the United States and Britain.

But the Belfast Project, whose goal was to document the Troubles, a decades-long period of violence, promised both Irish republican and British loyalist former combatants that their statements would not be released until their deaths. The project began in 2001 and interviews were recorded between 2001 and 2006.

Moloney, the director of the project, and McIntyre, a former IRA member, could be in danger if the interviews are released to the British government, the researchers’ lawyers have said. They have also argued that the release of the interviews would have a chilling effect on academic research in the future.

Jack Dunn, a Boston College spokesman, had no comment on the two men’s case, which they hope would block a subpoena for an interview with former IRA member Dolours Price.

Boston College, meanwhile, continues a separate legal battle over a second subpoena seeking other materials. The college will argue its case in the appeals court in Boston next Friday.

Christina DiIorio Sterling, a spokeswoman for the US attorney’s office, didn’t returm a message seeking comment.

Boston College IRA tapes case to go to US Supreme CourtBBC News
31 August 2012

A legal battle to prevent interviews with an IRA bomber from being handed over to police in Northern Ireland is to be taken to the US Supreme Court.

Ed Moloney and Anthony McIntyre conducted the interviews during a history project for Boston College.

They claimed the move would give foreign police agencies greater power over US citizens than the FBI.

The Police Service of Nothern Ireland (PSNI) is seeking the transcripts as part of an IRA murder investigation.

The taped interviews, with convicted bomber Delores Price, were conducted as part of the Boston College Belfast Project which began in 2001.

Ms Price was among a number of former republican and loyalist paramilitaries who were interviewed about their activities during the Troubles in Northern Ireland, on the condition that their accounts would remain confidential until after their deaths.

The PSNI is seeking access to her transcripts as part of their investigation in the the IRA murder of Jean McConville in 1972, after Ms Price gave an another interview to a newspaper in which she allegedly claimed to have driven the Belfast mother of ten to her death.

In July, a US appeal court ruled that Boston College interviews should be handed over to the PSNI.

Mr Moloney, a jounalist, and Mr McIntyre who is a former IRA member, had applied to the First Circuit Court of Appeal for a rehearing the case, but this was rejected on Friday.

The men said they were “disappointed” but would now apply for a hearing at the US Supreme Court because the case “addresses issues of major constitutional importance for Americans”.

They said the PSNI had applied for access to the interview transcripts under the terms of a Mutual Legal Assistance Treaty (MLAT) between the US and the UK.

In a joint statement, the men said their lawyers would argue that “the MLAT bestows upon the PSNI greater powers in relation to the serving of subpoenas in the US than could be exercised by, for instance, the FBI.

“US citizens could challenge a subpoena served by the FBI on First and Fifth Amendment grounds but are precluded from doing so in the case of subpoenas served by foreign powers under an MLAT.”

They added that 62 countries have signed MLATs with the US, and said some of them had “poor human rights records”.

Boston College is also appealing against the decision to hand over the tapes, but separately from the two men.

Its appeal will be heard in Boston on Friday 7 September, and Mr Moloney and Mr McIntyre said tapes could “theoretically be handed over to the PSNI” on that date.

The Belfast Project lasted five years and involved academics, historians and journalists.

The researchers have consistantly argued that releasing the documents could risk the lives of people who gave testimonies and damage the peace process in Northern Ireland.

Ms Price was convicted of her part in the car bombing of the Old Bailey courthouse in London on 8 March 1973. The explosion injured more than 200 people.

WITH SEVEN DAYS TO GO BEFORE BOSTON COLLEGE INTERVIEWS MUST BE HANDED TO PSNI, MOLONEY & McINTYRE ANNOUNCE THEIR INTENTION TO TAKE CASE TO SUPREME COURT

We are disappointed that the First Circuit Court of Appeal has today rejected our petition for an en banc rehearing of our appeal against that court’s decision denying us the right to intervene in the Boston College archive case. However we wish to make it clear that we now intend to apply to the Supreme Court of the United States for a hearing on a case which we believe addresses issues of major constitutional importance for Americans.

The First Circuit’s decision means that the IRA interviews lodged at Boston College could theoretically be handed over to the PSNI next Friday, September 7th on the same day as Boston College’s own appeal comes before the First Circuit Court of Appeal in Boston.

The application is based on a number of issues of great public interest and constitutional importance, not least that one effect of the First Circuit decision is to give foreign law enforcement agencies greater power over US citizens in respect of subpoenas than could ever be exercised by domestic agencies.

The subpoenas were issues under the terms of a Mutual Legal Assistance Treaty (MLAT) between the US and the UK and originated from the Police Service of Northern Ireland (PSNI). Messrs Moloney & McIntyre had appealed a lower court’s ruling denying them the right to intervene in the case and the First Circuit upheld that decision.

The First Circuit decision effectively precludes the assertion of U.S. constitutional rights guaranteed in the First and Fifth Amendments to the Constitution. In the case of the Boston College archives the Constitution guarantees, prior to the enforcement of the subpoena, the consideration of the free flow of historical documents to the American public and the protection of Ed Moloney and Anthony McIntyre – and their interviewees – against the deprivation of life, liberty or property without due process of law.

Ed Moloney and Anthony McIntyre’s lawyers will argue at the Supreme Court that the MLAT bestows upon the PSNI greater powers in relation to the serving of subpoenas in the United States than could be exercised by, for instance, the FBI. U.S. citizens could challenge a subpoena served by the FBI on First and Fifth Amendment grounds but are precluded from doing so in the case of subpoenas served by foreign powers under an MLAT. Sixty-two countries have signed MLAT’s with the U.S., some of which have poor human rights records.**

Their lawyers will also argue, inter alia, that the First Circuit panel conflicts with Supreme Court rulings in the landmark judgement, Branzburg v. Hayes in as much as that case permitted journalists to seek First Amendment protection against subpoena powers in order to demonstrate bad faith on the part of the requesting authority.

In this case the plaintiffs, Ed Moloney and Anthony McIntyre have been prevented by the First Circuit decision from arguing that the PSNI action is politically motivated and that the material requested by the PSNI was available in Northern Ireland. Their lawyers argue that Moloney and McIntyre have been denied their constitutional and statutory rights and protections and suffer violations of constitutional rights if the subpoenas are enforced by the Attorney-General.

Eamonn Dornan and James J Cotter also argue that because this is a case of first impression, as the First Circuit panel recognized, a re-hearing is warranted.

The US enacted MLATs with 62 countries during the years 1981 to 2010. The US State Department has also noted human rights problems in many of these same countries. The US Bureau of Democracy Reports on Human Rights Practices for 2011 notes a range of problems such as impairing freedom of the press (Argentina), violence against women and children (Bulgaria), violence against religious minorities (Egypt), government interference in elections (Russia), government harassment of the media and journalists (Venezuela).
Source: http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper

Countries that the US has MLATs with and reports of human rights problems from the US Bureau of Democracy, Country Reports on Human Rights Practices for 2011

Argentina 2004 (date treaty went into effect)
The principal human rights problems included use of excessive force by police, sometimes resulting in deaths; actions that risk impairing freedom of the press; and continuing infringements on the rights of indigenous people.
Other human rights problems included poor prison conditions, including mistreatment of some prisoners; occasional arbitrary arrest and detention; prolonged pretrial detention; continued concerns about judicial efficiency and independence; official corruption; domestic violence against women; child abuse; sex trafficking and forced labor, primarily within the country; and child labor.
Judicial authorities prosecuted a number of officials who committed abuses during the reporting period; however, some officials engaged in corruption or other abuses with impunity.

Bulgaria 2010
The marginalization of the Romani minority remained Bulgaria’s most pressing human rights problem. Also of note was right-wing extremist violence against Roma, Muslims, and other religious minorities. Corruption continued to be a drag on the government’s capabilities and public confidence in the judiciary and other state institutions.
Other human rights problems included harsh conditions in prisons and detention facilities, including overcrowding. Mistreatment of prisoners and detainees, especially members of minorities, was also alleged. There were also long delays in the judicial system; apparent abuse of wiretapping; violence and discrimination against women; violence against children; discrimination against members of the Romani and Turkish ethnic minorities; anti-Semitic vandalism; trafficking in persons; and discrimination against persons with disabilities, against lesbian, gay, bisexual, and transgender persons, and persons with HIV/AIDS.

Egypt 2001
The most significant human rights problems during the year were attacks on demonstrators, violence against religious minorities, the use of military courts in civilian cases, and arbitrary arrest, especially as permitted under the Emergency Law. Authorities harassed and pursued a broad-based investigation of nongovernmental organizations (NGOs) and their staff; state media and government figures branded many civil society activists “traitors” in a campaign against foreign funding of civil society groups. Security forces and civilian thugs attacked demonstrators during the year; these attacks, along with clashes among opposing groups of demonstrators, killed at least 930 persons. Beginning on January 28, authorities arrested and tried approximately 12,000 civilians in military courts that lacked fundamental due process procedures for offenses ranging from “thuggery” to “insulting the military.” The SCAF expanded the Emergency Law, in place almost continuously since 1967, to include broad offenses such as “causing internal tensions.” Under the Emergency Law, citizens were subject to arbitrary arrest and detention and unfair judicial procedures, although the transitional authorities primarily applied the code of military justice, rather than the Emergency Law, against demonstrators during the year.
Other human rights problems included physical abuse and torture by security forces, poor prison conditions, and governmental restrictions on freedom of expression, assembly, and association. Authorities detained journalists and bloggers for criticizing the military. The previous government severely restricted Internet freedom when it cut connections to telecommunication networks during the peak of antigovernment demonstrations. After the revolution security forces, including military police, used excessive force to disperse protesters and specifically harassed female protesters. Authorities continued to enforce onerous restrictions on non-Muslims establishing and repairing places of worship, and non-Muslims were targets of government and societal violence. The government continued to shoot African migrants attempting to cross the Sinai Desert en route to Israel. Domestic violence and societal discrimination against women was widespread.

Russia
The most significant human rights problems during the year involved:
1. Violations of Democratic Processes: Parliamentary elections were held in December; domestic and international observers described these elections as marked by government interference, manipulation, electoral irregularities, and restrictions on the ability of opposition parties to organize, register candidates for public office, access the media, or conduct political campaigns.
2. Administration of Justice and Rule of Law: Individuals who threatened powerful state or business interests were subjected to political prosecution, as well as to harsh conditions of detention. The conditions of prisons constituted a major violation of the human rights of many prisoners, who were subjected to poor medical care, lack of basic human needs, and abuse by prison officials. These conditions at times resulted in death. The government did not take adequate steps to prosecute or punish most officials who committed abuses, resulting in a climate of impunity. Rule of law was particularly deficient in the North Caucasus, where the conflict between the government and insurgents, Islamist militants, and criminal forces led to numerous human rights abuses by security forces and insurgents, who reportedly engaged in killing, torture, physical abuse, and politically motivated abductions. In addition the government of Ramzan Kadyrov in Chechnya continued to violate fundamental freedoms, engage in collective retribution against families of suspected militants, and foster an overall atmosphere of fear and intimidation.
3. Freedom of Expression: While there was free expression on the Internet and in some print and electronic media, self-censorship and the government’s ownership of and pressure on some print and most broadcast media outlets limited political discourse. Some journalists and activists who publicly criticized or challenged the government or well-connected business interests were subject to physical attack, harassment, increased scrutiny from government regulatory agencies, politically motivated prosecutions, and other forms of pressure. Attacks on and killings of journalists and activists occurred, and a number of high-profile cases from previous years remained unsolved. During the December Duma elections, Web sites that published reports of electoral fraud were disabled by distributed denial of service (DDoS) attacks.
Other problems observed during the year included physical abuse of conscripts by military officers; restrictions on the right to free assembly; widespread corruption at all levels of government and law enforcement; violence against women and children; trafficking in persons; xenophobic attacks and hate crimes; societal discrimination, harassment, and attacks on religious and ethnic minorities and immigrants; societal and official intimidation of civil society and labor activists; discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons; limitations on the rights of workers..

Venezuela 2004
The principal human rights abuses reported during the year included government actions to impede freedom of expression and criminalize dissent. The government harassed and intimidated privately owned television stations, other media outlets, and journalists throughout the year, using threats, fines, property seizures, targeted regulations, and criminal investigations and prosecutions. The government did not respect judicial independence or permit judges to act according to the law without fear of retaliation. The government used the judiciary to intimidate and selectively prosecute political, union, business, and civil society leaders who were critical of government policies or actions. Failure to provide for the due process rights, physical safety, and humane conditions for inmates contributed to widespread violence, riots, injuries, and deaths in the country’s prisons.
In addition, the following human rights problems were reported by nongovernmental organizations (NGOs), the media, and in some cases the government itself: unlawful killings, including summary executions of criminal suspects; torture and other cruel, inhuman, or degrading treatment; prison violence and harsh prison conditions; inadequate juvenile detention centers; arbitrary arrests and detentions; corruption and impunity in police forces; corruption, inefficiency, and politicization in a judicial system characterized by trial delays and violations of due process; political prisoners; interference with privacy rights; restrictions on freedom of expression; corruption at all levels of government; threats against domestic NGOs; violence against women; anti-Semitism in the official media; trafficking in persons; violence based on sexual orientation and gender identity; and restrictions on workers’ right of association.

Catching Up with Carrie Twomey…The Battle to Quash Subpoenas in Boston and Belfast
August 31, 2012
By Sabina ClarkeIrish Edition

Recently I caught up with Carrie Twomey, safely ensconced with her husband Dr. Anthony McIntyre and children in County Louth, Ireland.

McIntyre, who conducted interviews with former IRA members in the Boston College oral history project documenting ‘The Troubles’ in Northern Ireland and Belfast Project Director Ed Moloney, are in the eye of the storm in the Boston College tapes stand-off between the appellants and the U.S. Attorney General.

My initial interview with Carrie was several months ago when she had a stopover in Philadelphia after returning from Washington, D.C. where she met with congressmen and Senators to enlist their aid in averting the handover of the tapes to the British Government. Then she was off to Boston for more meetings.

Twomey is astute, articulate and knowledgeable about the intricacies, legalities and politics of the challenges facing her husband and Ed Moloney and the possible negative ramifications for the peace process if the Boston College tapes are released to the British Government’s Historical Enquiries Team (HET).

And as a wife and mother, she is understandably concerned about the physical safety of her husband and her children -— aware that anyone labeled a ‘tout’ or informer can be targeted by the Irish Republican Army, The IRA. She talked about the latest developments in the case that goes back to May 2011 when the initial subpoena was served.

SC: Let’s go back to the very beginning of all this when the first subpoena was served.

CT: The first subpoena was served in May 2011 after ex –IRA member Dolours Price gave an interview to The Irish News here. At the time Dolours was in the hospital. Her family was upset with what she said in the interview so The Irish News did not print the entire unabridged interview. The reporter for The Irish News was annoyed and then gave the interview to the The Sunday Life, a tabloid paper here; and the tabloid ran the entire interview. To protect the reporter, the tabloid mentioned the Boston College tapes —- except that no one had ever heard or was privy to what was on the tapes. What is interesting is that it was about a month [after] the police here ever investigated or even went to the papers here. [The PSNI first approached TheIrish News after court papers were filed in the US seeking the quash the subpoenas]

SC: What is happening right now?

CT: On September 7th Boston College goes to court to present oral arguments appealing the second subpoena which requests all the material from seven interviews —- apart from Dolours Price’s interview. The Price interview was requested in the first subpoena that came and has not yet been turned over. The Lower Court ordered the Price archive to be turned over but that is what we are appealing. That is covered in our request for the ‘en banc’ hearing. Boston College did not appeal the first subpoena or the ruling on the first subpoena. The second subpoena came in asking for anything relating to the McConville case and the rest of the archive. The Lower Court read the entire archive and determined that there were seven interviews that responded to the second subpoena and should be turned over. This determination was made by Judge William Young -— the first judge in the Lower Court.

SC: As compared to Boston College, what is the difference regarding the nature of the appeals made by Boston College and the appeal made by your husband and Ed Moloney?

CT: Moloney and McIntyre are appealing the whole thing. They don’t want anything turned over. Boston College is appealing just the second subpoena.

SC: So, are all of these subpoenas specifically related to the McConville case?

CT: Yes, that’s what we believe. But we don’t know a hundred percent because both subpoenas are sealed; but from the rulings and the court papers, we do know that they relate to the McConville murder -— if they relate to anything else, we don’t have any idea.

SC: I’m surprised that Boston College is even doing this.

CT: Well, we believe the ACLU’s involvement in our case forced them to do something and from all the pressure that came on them for how badly they reacted to this. People were very unhappy with them -— so the pressure did help. So, it is good that they are appealing this.

SC: What materials were requested in the first subpoena?

CT: The first subpoena was the request for Brendan Hughes’ archive and the Dolours Price’s archive. Because Brendan Hughes had died, the conditions of his confidentiality were predicated on his death so Boston College handed that over.

SC: So the Brendan Hughes testimony can be used because he is dead.

CT: Exactly, but Dolours is still very much alive.

SC: Where does Judge Juan Toruella come in?

CT: Juan Toruella is one of the three judges on the Appeals Court that was heard back in April. He did not call the requests for the subpoenas political but did remark that the subpoenas are connected to a crime that is political in nature since it derived from the conflict in Northern Ireland over the existence of partition. I believe this may be the first time a Federal Court judge has saidThe Troubles in Northern Ireland were political. So, he offered a window for the U.S. government to reject the British subpoenas if the offences are deemed to be political.

SC: His statement gave Attorney General Eric Holder and Secretary of State Hillary Clinton a reason to reject the subpoenas.

CT: Yes, he realized the political significance of the case. Whether or not they do, is really up to pressure exerted by Irish America.

SC: What is happening with Dolours Price? She would never testify would she?

CT: I don’t think so.

SC: What is the mood in the Irish Parliament; is there any change as far as their position to just let the process evolve on its own?

CT: They have been in recess for the summer but I fully intend, when they are back from summer recess, to fully engage with different members of the Irish Parliament to work on this issue.

SC: Is there anything in the papers in Ireland about this?

CT: When there is some movement; I understand that there is an article coming out in the next couple of weeks because of the rehearing request that we have made. Also, because we will be in the Belfast Court on the 14th of September. So, that will be news in Belfast. Generally, when the case slows down and there is no movement, there is not going to be any media. We had very good coverage on PBS News Hour this week; you can view it online. They did a 10 minute segment which will generate more interest in the case.

SC: Are the Irish groups making any impact with their lobbying and joint statements?

CT: I think they are. About a month ago, they had a second meeting at the State Department’s request, which was a good sign. They have so far generated 20 letters from different congress people. We have very strong support from Senator Kerry’s office which is crucial. They have not flagged; they are keeping up the pressure. This is a marathon campaign and the Irish American groups are still running hard which is very very good.

SC: I have noticed that people in Ireland and some former IRA members who, like your husband, broke with Gerry Adams over the peace process, and the author Richard O’Rawe who also doesn’t agree with Sinn Fein’s strategy in the peace process, are still of the opinion that the tapes should not be handed over to Britain.

CT: That is true; Richard O’Rawe would not be supportive of the tapes being turned over. I think that turning the tapes over would have a hugely destabilizing effect on the peace process. Instead of having a truth commission, we could end with having a constant parade of court cases against people who are in prominent positions. It can only undermine people’s confidence in the peace process. It will certainly not support it. There is a big difference between a truth process and a prosecution process.

SC: Perhaps something like the South African model of truth and reconciliation

CT: It doesn’t have to be exactly like the South African model but we do need to come to some way of addressing the past. The prosecutorial model is not going to be the way to do it simply because it was contracted in The Good Friday Agreement that we are going to overlook the crimes of the past and look to the future. Now, almost 20 years later, they cannot decide that we are going to declare war crimes against Martin McGuinness, the North’s deputy First Minister.

SC: I think Sinn Fein has been pretty much silent on the Boston College tapes issue

CT: Well, Anthony will be presenting a paper here in Clare at the end of September. In circles that are interested in both history and Northern politics, definitely, it is a very hot issue.

SC: How do you feel now with what is going on compared to how you felt several months ago?

CT: I don’t know. This is a marathon rather than a sprint and I don’t see any real end in sight. It is the day to day living with fear.

SC: Do you really live in fear every day?

CT: Yeah, yeah.

SC: Have you had any kind of intimidation?

CT: No, but every so often you’ll hear people saying this and that. And the house next door to us had excrement smeared on their mailbox and car -— perhaps mistaking the home for ours.

SC: Are you thinking of coming back to the U.S, again?

CT: I was hoping to be there in the Boston court on September 7th for the arguments presented by Boston College but financially, we can’t do it. We are still paying off the credit card debt from my last trip to the U.S.

The subpoena of Boston College’s oral history archives are rooted in a desire to sue Gerry Adams, and the criminal case, where the archives will have no value, is being used to access the archives for use as evidence in a future civil suit.

The Moloney & McIntyre hearing in the First Circuit Court of Appeals is next week, Wednesday, April 4th. Oral arguments will be presented to a panel of judges: Chief Judge Sanda L. Lynch, and Circuit Judges Juan R. Torruella and Michael Boudin.

Over the last month there has been more political movement from members of Congress, questions over Boston College’s credibility were raised, the last filings from the US Attorney and Moloney and McIntyre were submitted, Irish America kept the pressure on, and more. Here’s a round-up of the issues covered:

Over the weekend, Judge Young ordered at least a third of the Republican archive to be turned over; in a rare Saturday filing, the Department of Justice immediately asked for even more of the archive. Loyalist interviews are also involved. Currently, Moloney and McIntyre’s lawyers have obtained a Motion for Stay in the Appeals Court which means no material will be moving from the court until that Motion is heard in March.

Tomorrow, January 24th, Judge Young will be holding a hearing regarding Moloney and McIntyre’s Complaint and the Department of Justices’s Motion to Dismiss. Former Belfast Project Lead Researcher Anthony McIntyre’s wife, Carrie Twomey, will be in attendance. Dr. McIntyre’s wife and their two children are all American citizens and Ms Twomey has been in Washington DC this week raising her concerns for the safety of her family. The Irish American Unity Conference, the Brehon Society and the Ancient Order of Hibernians will hold a press conference after the hearing which is being held at Boston College.

“In attendance will be Ned McGinley, former National President of the AOH representing Seamus Boyle current National President; Jim Cullen representing Robert Dunne, President of the Brehon Law Society, and Michael J. Cummings representing Thomas Burke, President of the Irish American Unity Conference.
This coalition of Irish-American groups has been joined by journalists, historians involved in Oral History projects, law professors, and human and civil rights activists in protesting this politically motivated fishing expedition which it is feared will destabilize a peace process that is only beginning to take root in the North.
Moreover it is believed that it would be unconscionable forAttorney General Holder to respond to this British request in light of Prime Minister Cameron’s refusal to hold a promised public inquiry into the murder of attorney Patrick Finucane (a murder in which he admits the government collaborated) and the refusal of the Prime Minister to respond to the Unanimous Declaration of Dail Eireann (Irish Parliament) for information on the Dublin Monaghan bombings.”

The leader of Fianna Fáil, Micheál Martin, has questioned whether the IICD’s deposit of the politically sensitive decommissioning documents at the Burns Library in Boston College will be protected by the embargo promised by Boston College.

“What is of major concern is that these papers have been given to an institution outside the island of Ireland which is now involved in a major controversy about protecting the integrity of its sealed archive.”
“[…] the fact that there is a question mark over the ability of Boston College to protect sensitive political papers in their archives from premature release is an issue of real concern.”

Boston College, for its part, believes that the British and Irish governments will not attempt to access the documents:

In a statement to the BBC, Boston College said: “There is no conceivable reason why the British or Irish governments, which set the terms for the International Independent Commission on Decommissioning (IICD) papers when they were sent to the college, would break those terms.”

However, it must be remembered that, prior to being served with a subpoena from the US Department of Justice, Boston College could not imagine a conceivable reason why the British or Irish governments would attempt to access the Belfast Project archives, either. And, to add insult to injury, when questioned about the possibility of a the British Government using the US Department of Justice to issue a second subpoena seeking broader access to the full archive, Boston College believed that it was unlikely to happen.

Yet a second subpoena did arrive and Boston College has since given the archive to the US Court. Its handover to British authorities is currently being contested by the project director and researcher – not by Boston College. So if the decommissioning archives were sought by anyone – not necessarily the British or Irish Governments – Boston College’s ability, and willingness, to keep them secure is dubious, as dubious as Boston College’s understanding of the risk posed to their embargos.

BACKGROUND

“The transcripts of interviews with Irish Republican Army and Ulster Volunteer Force veterans, most of whom were operationally active, are housed at the University’s Burns Library and are subject to prescriptive limitations governing access. Boston College is contractually committed to sequestering the taped transcriptions unless otherwise given a full release, in writing, by the interviewees, or until the demise of the latter.”
“Boston College has had a long interest in Ireland and offered a welcoming and neutral venue in which participants felt a sense of security and confidentiality that made it possible for them to be candid and forthcoming.” – Professor Thomas Hachey and Robert O’Neill, director of the John J. Burns Library, Preface to Voices From the Grave.

The Senate Foreign Relations Committee held a series of hearings on the subject. The Ancient Order of Hibernians, the Brehon Law Society, and the Irish American Unity Conference led the opposition to the new treaty.
On at least eight occasions during the hearings, the British Government and the U.S. Justice Department assured the Senate that pre-GFA offenses arising from the conflict in Northern Ireland would be off the table for extradition under the new treaty.
The Senate eventually ratified the 2003 Extradition Treaty in 2006. The Senate partially accepted Britain’s assurances about pre-GFA offenses being off the table, but felt compelled to incorporate those assurances into the treaty ratification, itself.
The whole story is laid out in Congressional Research Service Report for Congress, “Extradition Between the United States and Great Britain: The 2003 Treaty”.
The Mutual Legal Assistance Treaty (MLAT) and extradition treaty are closely connected. They were negotiated, signed, considered by the Senate, and ratified contemporaneously.

It appears that the Boston College subpoenas are the first time that Britain has sought U.S. subpoenas for offenses stemming from the conflict in Northern Ireland, ostensibly ended with the GFA 13 years ago.
When the MLAT was signed and approved by the U.S. Senate, there was no ostensible reason to believe that the MLAT would be used for subpoenas for pre-GFA offenses, especially in light of Britain’s assurances that pre-GFA offenses were off the table.

“Release of the materials sought by the subpoenas would be contrary to the foreign policy and national security interests of the United States because they have a high potential for severely undermining the peace process which has been an important foreign policy objective of the United States for the past fifteen years. As you are aware, the United States, under the administration of President Clinton, was a principal architect of the Good Friday Agreement, or “GFA” (also known as the Belfast Agreement) signed in 1998 by the United Kingdom and the Republic of Ireland. The results of this historic agreement have been the establishment of stability and relative calm to the North of Ireland.”

“In sum, the information sought has a serious potential for destabilizing the peace process and, by extension, U.S. national security interests.”

According to Ned McGinley, a former national president of the Ancient Order of Hibernians, another group contesting the subpoena, releasing the documents could endanger the people interviewed.
“Those interviews are not evidence. They were not taken under oath,” McGinley said in a phone interview. The subpoenas are “really objectionable for three reasons. The principle reason being of course the subpoenas have nothing to do with foreign policy and national security of the United States. The release of those oral histories could endanger the lives of those who provided them.”

❡ The 2010 interview with Dolours Price conducted by Allison Morris of the Irish News is a central issue to the foundation of the subpoena. The first subpoena was served on 5th May, 2011, after proceedings were initiated on the US side at the end of March, 2011.

In the Motion to Quash the subpoena filed by Boston College on 7 June, 2011, Ed Moloney states in his affidavit:

31. In February 2010, I learned that Dolours Price had been interviewed about her life in the IRA by a Belfast morning daily newspaper called the Irish News. This report made no mention of the fact that she had been previously interviewed for the Belfast Project even though she had told this to the Irish News, but that fact was later published in the Sunday Life, a small Sunday newspaper in Belfast which had been made privy to the unpublished parts of her Irish News interview. The interview had been tape-recorded, I understand, by the Irish News and the tape passed on to the Sunday Life by the reporter for the Irish News who had interviewed Dolours Price. It was, to the best of my knowledge, the Irish News tape that the Sunday Life reporter referred to having heard and this was the source of their report that she had been interviewed by the Belfast Project. Neither newspaper could have heard her Belfast Project interviews because the only tapes and transcripts of those interviews are stored at the Burns Library at Boston College. I did not know about the Sunday Life story or the details of what it had published until recently. (Sec 31, page 10)

The US Government, in its Opposition to the Motion to Quash argues:

Ms. Price’s interviews by Boston College were the subject of news reports published in Northern Ireland in 2010, in which Ms. Price admitted her involvement in the murder and “disappearances” of at least four persons whom the IRA targeted: Jean McConville, Joe Lynskey, Seamus Wright, and Kevin McKee. See Exhibits 1 and 2. Moreover, according to one news report, the reporter was permitted to listen to portions of Ms. Price’s Boston College interviews. Id. (Page 4)

Boston College elaborates in its reply to the Government’s Opposition:

4. Dolours Price had no ability to, and did not, disclose tape-recordings of her Belfast Project interviews to a newspaper reporter.

To sow doubt whether Dolours Price in fact expected and relied on the confidentiality of her Belfast Project interviews, the Government mistakenly asserts that “according to one news report” a reporter has been “permitted [by Dolours Price] to listen to portions of Ms. Price’s Boston College interviews” (Gov. Op. at 4, citing Exs. 1 and 2 to the Government’s Opposition).

The Government’s sole support for this mistaken assertion is a news clipping (Exhibit 1 to the Government’s Opposition) of an article in the February 21, 2010, edition of Sunday Life, a small Belfast weekly newspaper (Moloney Affidavit (D. 5-5), ¶ 31). But that article does not say that the tape recordings heard by the reporter were from Dolours Price’s Belfast Project interviews. The Government assumes that the article’s report of the reporter hearing certain tape recordings of Dolours Price (Ex. 1, ¶¶ 3, 7, and 20) refers to the same tape recordings that the article later describes as Dolours Price’s “taped confessions of her role in the abductions to academics at Boston University [sic]” (id., ¶ 30). That assumption is wrong.

Anthony McIntyre, the person who interviewed Dolours Price for the Belfast Project, swears that neither Dolours Price nor any of the others he interviewed for the Belfast Project were provided the tape recordings of their interviews (McIntyre Affidavit (D. 5-4), ¶¶ 10 and 14). In his affidavit in support of Boston College’s Motion to Quash, the Director of the Belfast Project, Ed Moloney, explains that Dolours Price gave a tape-recorded interview to a reporter for a different newspaper, the Irish News, that the tapes of that interview were passed on to a reporter for Sunday Life, and that it is the tape recordings of Dolours Price’s interview with the Irish News that the Sunday Life reporter apparently was allowed to hear (Moloney Affidavit (D. 5-5), ¶ 31).

There is no evidence that Dolours Price has disclosed the tapes of her Belfast Project interviews to anyone. (Sec 4 page 6)

It is now understood that the PSNI approached Allison Morris of the Irish News in June, 2011, after the subpoena was served on Boston College and after Boston College’s Motion to Quash, including Moloney’s affidavit, was filed. Morris has written: “The Irish News was approached by the PSNI in June this year. The police were informed I had not retained any material in relation to my discussion with Ms Price and had nothing further to add to what had appeared in The Irish News in February 2010.”

The latest additions to the site this week focus on Court Changes, new filings, the Irish Presidential election, and a look at the documentary based on two of the Boston College tapes.

COURT CHANGES

❡ In an oddly timed move, occurring some 3 months since he was first assigned to the case, Judge Joseph L. Tauro has recused himself from the case. His son is a partner at the same firm representing Boston College. Why did this take 3 months to become an issue? And who requested he remove himself? Not even the judge knows; the submissions arguing for and against are sealed. He is replaced by Judge William G. Young. This is now the 3rd Judge the case has had since Judge Richard G. Stearns was added on 31 March. Stearns also lasted a little over 3 months – will Young go the distance?

COURT DOCUMENTS

❡ The US Attorney has filed a motion opposing the Intervenors motion to file a reply. Echoing Emperor Joseph II’s complaint of Mozart’s work from the movie Amadeus, “Too many notes!”, the government would prefer to see a speedy resolution involving less documentation.

“Having already filed 157 pages of pleadings and attachments with their initial motion [D.18], the putative intervenors now seek to file an additional pleading of unspecified length. [D.25] The grounds for their request essentially are that there are “substantial issues at stake” and “matters of first impression” at issue. [D.25 at 1-2]. The putative intervenors neither claim that the government’s response raises any new issues, nor that there are any issues which now need to be briefed of which they were not aware at the time they filed their initial brief. Allowing a reply memorandum would simply delay resolution of this matter, permit duplicative and unnecessary briefing in this case, and reward the putative intervenors for failing to state their complete case in their initial pleading.”

NEWS COVERAGE

❡ Dublin’s Evening Herald raises the issue of the Boston College tapes in the context of the current Irish Presidential election. Martin McGuinness, well known as a senior member of the IRA with a history that goes back to the early 1970s, is running as an ‘independent’ candidate. He has temporarily stepped down from his post as Deputy First Minister in the Stormont Executive, a position he holds in his capacity as a Sinn Fein leader. Because of his involvement in the IRA, his bid to become President of Ireland means his past is being looked at with renewed interest. The Herald suggests the Boston College tapes could play a part in the election: “A US COURT could seriously hamper Martin McGuinness’ presidential hopes if it rules to release confidential IRA tapes to the PSNI.” Its headline suggests McGuinness could face questioning.

❡ David McKittrick, while not discussing the Boston College tapes, writes in the Irish Independent about McGuinness’ past and explores reasons why he is lying about it now. This link is included in our ‘News of Interest’ section, where recent stories covering issues relevant to the Boston College issue are noted.

BACKGROUND INFORMATION

❡ Two of the interview series contained in the Boston College archives were made into the book and documentary of the same name, Voices from the Grave. This award winning documentary was first aired in October, 2010, on the RTE network in Ireland. Based on the interviews with Brendan Hughes and David Ervine, the documentary’s power derived in part from being able to hear these two men speak. The documentary is now available online in 9 parts on YouTube: Voices from the Grave

3 October 2011

This week has seen more court filings and news coverage. Constitutional issues and threats to civil liberties feature.

9. In their Motion for Leave to Intervene, the Intervenors seek to raise substantial questions with regard to their constitutional rights under the First and Fifth Amendments; the rights or obligations of both the U.S. and the U.K. under another bilateral agreement relating to the subject matter of the subpoenas; whether the request for assistance (a) would impair the essential interests of the United States (b) would be contrary to important public policy considerations of the United States; and, (c) is directed to an offense of a political character; whether the Government’s actions were arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law; and whether the request for assistance is unreasonable or oppressive contrary to F.R. Crim.P. 17(c)(2).10.

“Leaders of the Ancient Order of Hibernians, Irish American Unity Conference and the Brehon Law Society have joined in protesting subpoenas of records and tapes held by the Burns Library archives of Boston College.
After a series of meetings, representatives of the groups agreed that not only were there valid legal arguments for opposition to the subpoenas, but also foreign policy and morals grounds for doing so.”

“Jim Cullen, spokesman for the Brehon Law Society, acknowledged in a statement that other Brehon lawyers and those designated by the AOH and IAUC, were in agreement that meetings with U.S. Senator John Kerry (D-MA), chairman of the Senate Foreign Relations Committee, and U. S. Representative Richard Neal (D-MA). chairman of the Ad Hoc Committee for Irish Affairs, and others would be undertaken in order to fight the release of any records to the British government “and/or whatever rogue or dissident elements of the PSNI” may have prompted the subpoenas.”

Brian Rowan from the Belfast Telegraph has described why journalists, especially in Northern Ireland, need to be able to protect their sources: “If people want to read, listen to and watch the news, then they need to understand what gathering that news entails. That it involves going into dangerous situations. It means protecting sources in order to gather the best information to inform those who are reading, listening and watching.”
Ed Moloney, who directed the Boston project, told Radio Free Eireann that this case goes beyond Northern Ireland:

“This has huge implications for historians and journalists in America. It is going to make it far more difficult to get the stories of the actual people who participate in conflicts. If you are interviewing a Black activist from Brooklyn or the Bronx, you are going to be looking over your shoulder because the New York Police Department can come after it to put him in jail.”

Now there is an even more alarming threat to civil liberties. The latest Justice Department legal brief contends that not even the courts can review the attorney general’s decision in this case. It argues: “The determinations of the Attorney General challenged in this case are textually committed entirely to his discretion.”
It claims the courts have absolutely no role: “To recognize a right to judicial review of such determinations would entangle the courts in national policy decisions.”
If the courts accept this, it will mean that anytime a foreign government wants information, the attorney general, at his or her sole discretion, can force it to be handed over. It will become a political decision based entirely on U.S. foreign policy.

“Former U.S. Army JAG Corps general, James Cullen, has presented the force with a letter of protest written by him and on behalf of the Brehon Law Society.

Cullen said he had been “frank” during a meeting with Chief Superintendent Alan Todd at PSNI headquarters in Knock. Cullen said that he had outlined the Brehon position as to why the force should refrain from seeking the Boston College archive material by means of a subpoena issued by the U.S. Attorney’s Office in Boston.

“Americans can be known for their frankness, and I was exactly that with Chief Superintendent Todd about the feelings of the Brehon Society, and Irish America in general, over this issue,” Cullen said.
“Have the PSNI really considered the impact that seeking to access these tapes will have? People are beginning to ask is this a legacy of the old RUC creeping back?
“The subpoena will make those in universities who wish to conduct valuable research into the conflict here, research that can even aid peace and reconciliation, impossible,” he said.”

25 September 2011

Court documents, analysis and background information are new to the site this week.

The implications of this argument are extraordinary. If it’s correct… Okay, let me start over again: If it prevails, then once the DOJ agrees to a foreign request, you have fewer rights against legal proceedings requested by foreign governments than you do in legal proceedings undertaken solely by your own government. If the British want your documents, and the DOJ says yes, that’s it.
So the premise here is that foreign governments have essentially unrestricted rights to obtain legal evidence in the U.S., subject only to the discretion of Eric Holder, and the courts and those subject to search and seizure have no avenue by which they can restrict the performance of the searches and seizure in question. I know I’m saying the same thing over and over again in different words. I mean to.
If it succeeds, this argument is the death of the Fourth Amendment — the death of it, period — in legal matters originating with foreign governments.

Background information, news coverage and a little history feature in the latest updates to the site.

HISTORY

❡ Fearghal McGarry’s book, Rebels: Voices from the Easter Rising, based on the oral histories gathered by the Bureau of Military History, was reviewed in the Irish Times this week. It was these records that Boston College’s Belfast Project modelled itself after: History Remembered by the People Who Were There

BACKGROUND INFORMATION

A number of pages have been added to the Background section, including:

❡ Who was Brendan Hughes? His interviews for the Belfast Project were one of the archives sought under the first subpoena served to the Burns Library. After his death in 2008, which lifted the terms of the confidentiality agreement, the book and documentary, Voices from the Grave, were published. In April, 2011, the Family and Friends of Brendan Hughes held their first annual Brendan Hughes Debate and Discussion at the historic Conway Mill in West Belfast. They asked lead researcher for the Belfast Project, Anthony McIntyre, to deliver the inaugural lecture. Brendan Hughes: A Life in Themes

❡ At the end of March, 2011, the Burns Library was chosen to house the papers of the IICD, a body set up by the British, Irish and US governments to disarm the IRA and other paramilitary groups. Confidentiality was, and remains, a key part of their ability to decommission paramilitary weapons. In May, 2011, a month after the IICD’s embargoed papers were deposited at Boston College, the US Attorney served the first subpoena on behalf of the British Government seeking access to the library’s confidential oral history archives. Final Report of the Independent International Commission on Decommissioning

“We have not included with this report copies of correspondence sent to the Commission by private individuals as these might be subject to privacy considerations. Also as directed by Ref. D, we consulted with the Northern Ireland political parties at the outset of our mandate and received from them papers setting out their views on decommissioning. These were provided in confidence and along with the private correspondence they will be deposited with our files for safekeeping by Boston College, Massachusetts, USA, subject to an embargo on their disclosure for thirty years.”

“… the police efforts to use the Boston College archive in a criminal investigation could, he said, deter others from helping the commission.
“We’ve had some concerns expressed to us, very serious concerns, by intermediaries and others who we deal with on a day-to-day basis,” he said.
“They have flagged this up. We were concerned about it, they too have flagged it up, without any prompting from us.
“And we appreciate that this will put people off, or potentially put people off, from contacting us with information. But it’s our lifeblood. It’s what we survive on.”
He added: “If it’s putting them off, we need to make it absolutely clear that it’s not the way we do things.
“We appeal for information always. We don’t adopt the sort of approaches that are clearly being adopted here. It’s not what we would do.”
Mr Knupfer said he was unaware if any cases had already been adversely affected by the issue.
But he said losing contact with potential sources of information could endanger the chances of securing closure for the families of the remaining Disappeared.
“Of course it might. The whole ethos of this is information. It’s based on information and if the information isn’t available, then sadly we can’t do an awful lot to resolve the heartache of the families concerned.”
The commission investigator said he had no reason to believe Boston College held information which may be of help to his work.”

NEWS COVERAGE

A number of articles gave coverage to the case in the news media this week:

“Do you believe that those who committed crimes in the past should be granted amnesty or anonymity for their testimony under certain circumstances? Why or why not? How do you think a country or group of people can most effectively address past injustices to lay the foundation for a more just future?”

“There’s no reason why the U.S. has to be party to this investigation. Boston College is right to resist the demands of both the Justice Department and the PSNI. After all, if Washington and London can keep secrets in the interests of peace or public order, or whatever other reason they might have, an academic institution has a right and a responsibility to keep confidential files confidential.”

“The Eye has also learnt that the subpoenas are based on a false claim that one of the interviews with Price, published in the Sunday Life newspaper in February last year, was based on an interview with the Boston College project – suggesting it had already put recordings in the public domain. That is not true; and no doubt the college will hope that this fundamental flaw in the legal process could lead to the quashing of the subpoenas.”

❡ The week ended with Radio Free Eireann, broadcasting on WBAI out of New York, devoting Saturday’s show to an examination of the case, interviewing Belfast Project Director Ed Moloney, Lead Researcher Anthony McIntyre and their lawyer, Eamonn Dornan. The program can be downloaded as an MP3 file here – right click, save as: http://archive.wbai.org/files/mp3/wbai_110917_130046rfeireann.mp3

“Anybody reading the news reports in the United States here would be very concerned about how that situation is being used by elements who are not favourably disposed to the peace process in order to use that situation in order to destabilise the progress that we have made.”

Up until now senior republicans have brushed off the Boston College issue in the belief that the tapes could not be used to mount a prosecution.

However, it has now emerged that, even if the tapes do not provide the proof beyond reasonable doubt required in a criminal case, they could be used in a civil action where proof is only on the balance of probabilities.

That is what happened in the case of the 1998 Omagh bombing.

In June 2009, some of the families of the 29 dead won a £1.6m civil action against four suspects who had not been convicted.

They did so using police evidence which was subpoenaed by their lawyers. Norman Baxter, a former RUC and PSNI Chief Superintendent who investigated the Omagh bombing, said the same thing was likely to happen again.

“Before the information can be used in a civil action the opportunities for criminal prosecution must be exhausted.”

JEFFREY BROWN: And next, the ghosts of the past in Northern Ireland coming to life in a new legal battle that is playing out on both sides of the Atlantic.

NewsHour special correspondent Kira Kay has the story.

KIRA KAY: It has been 14 years since peace came to Northern Ireland with the so-called Good Friday Agreement that ended the three decades of sectarian conflict here known as the Troubles.

But vivid memories remain of the violence between nationalist militants like the IRA and the British army and loyalist paramilitaries that killed more than 3,000 people.

In 2001, a group of academics set out to collect the oral history of Northern Ireland’s combatants, they say to record the truth, before it was too late.

ANTHONY MCINTYRE, Belfast Project: I think we have to understand why people become involved in conflict, why people who would I live normal, peaceful lives are drawn into the most violent of conflicts. Once these people have died, those voices would be lost forever.

KIRA KAY: One-time IRA member Anthony McIntyre served 17 years in prison for murder of a loyalist foe.

After his release, he earned his Ph.D. He was hired by Irish journalist Ed Moloney to help create what they called the Belfast Project, an audio archive of around 40 interviews with former fighters.

William “Plum” Smith, a former loyalist combatant, was a participant.

WILLIAM ‘PLUM’ SMITH, former loyalist militant: We had a story that hadn’t been told, that needed to be told, so that people in the future from different countries involved in conflict could maybe look at our situation and benefit from it educationally.

KIRA KAY: An ocean away, Boston College was eager to include the Belfast Project in its renowned collection of Irish research.

JACK DUNN, Boston College: The enterprise of oral history has great importance to the academic world to helping to solve sectarian strife.

KIRA KAY: Jack Dunn is Boston College’s spokesman.

JACK DUNN: Being the repository of the Belfast Project, of these tapes regarding the Troubles, seemed like a logical thing for a university of our caliber to do.

WILLIAM “PLUM” SMITH: This was just a pure, simple one-page agreement that we signed.

KIRA KAY: Interviewees like William Smith were promised that their testimony would remain confidential until their deaths. And that’s how it went for years, the tapes hidden away under lock and key on Boston College’s campus.

But in 2010, that all changed, after infamous IRA commander Brendan Hughes died and his interviews were released.

BRENDAN HUGHES, former IRA commander: A lot of the stuff that I am saying here, I’m saying it in trust, because I have a trust in you. I have never, ever, ever admitted to being a member of the IRA, never. I have just done it here.

KIRA KAY: And then, last summer, a bombshell: The U.S. Department of Justice, acting on behalf of United Kingdom law enforcement, subpoenaed the tapes of several interview subjects who were still alive.

JACK DUNN: What led to the subpoenas was the fact that one of the participants, Dolours Price, had given an interview with Irish media, in which she had referenced the tapes and implicated herself in the murder and abduction of Jean McConville.

HELEN MCKENDRY: daughter of Jean McConville: It never goes away. You wake up with it in morning and it’s there at night when you go to bed. It just never leaves you. Even after 40 years, it’s still hard.

KIRA KAY: Helen McKendry was 15 years old in 1972, when her mother, Jean McConville, was branded an informant by the IRA.

HELEN MCKENDRY: The IRA came and kicked the door in. The kids were screaming, but they didn’t pay attention to anybody, just dragged my mother out of the house. And that was the last she was ever seen of.

KIRA KAY: McConville disappeared for three decades, until her body was found on a beach in 2003.

Word that the Boston College archives might hold answers spurred authorities to reinvigorate the case and raised the hopes of Helen and her husband, Seamus.

HELEN MCKENDRY: To me, it’s important that I know what’s on the tape and also maybe, you know, there will be a court case, and someone will pay for what they did to my mother.

SEAMUS MCKENDRY, husband of Helen McKendry: And I would implore them to release the tapes. It’s not just compassion we are looking for. It’s reality, you know? This might give my wife the peace she deserves.

ANTHONY MCINTYRE: Regardless of what individual victims may want — and what they want is fully understandable — the researcher must at all times seek to protect their sources.

KIRA KAY: The Justice Department argues it is compelled to demand the interviews on behalf of the U.K. under something called the Mutual Legal Assistance Treaty that promises cooperation on criminal investigations.

Jonathan Albano is a First Amendment lawyer working pro bono for the American Civil Liberties Union.

JONATHAN ALBANO, attorney: There are significant First Amendment issues raised when the government, in this case a foreign government, is seeking a judicial order requiring academics or journalists to turn over confidential materials.

KIRA KAY: Albano says the treaties the U.S. signs with its allies do not automatically override the protections given to journalists by the Supreme Court.

JONATHAN ALBANO: I’m not saying, so, therefore, all subpoenas are off-limits. What we are saying is this is an important enough area where people have the right to be heard, and you really do have to carefully engage in an analysis of, is there a real need what will be the potential harm, and is it worth imposing these kinds of burdens on protected First Amendment communications?

KIRA KAY: Back in Northern Ireland, there are concerns the tapes release will hinder, not help, the search for truth.

ANTHONY MCINTYRE: If the daughter of this particular victim gets answers through the Boston College tapes, then that is going to close down the very real potential for the other victims getting answers, because people will not come forward as part of a truth recovery process if the information that they divulge is to be used against them in courts.

KIRA KAY: Former militant William Smith says its already happening on the streets of Belfast, where he works with ex-combatants. And so he wants his tapes back.

WILLIAM “PLUM” SMITH: The damage that it’s doing to truth recovery, or conflict transformation, is tremendous. People will not talk now.

KIRA KAY: Anthony McIntyre suspects there is political motivation behind the British state’s demand for the archive.

Gerry Adams, the well-known Irish nationalist politician, was implicated in both the Brendan Hughes tapes and the Dolours Price interview. But he has repeatedly denied he was an IRA member or had anything to do with Jean McConville’s murder.

McIntyre says he’s now been labeled an informant. His wife, Carrie Twomey, is American. Her husband can’t travel to the U.S. because of his murder conviction, so she is lobbying on his behalf.

CARRIE TWOMEY, wife of Anthony McIntyre: I am an American citizen and my children are American citizens. And this is the actions of my government placing our lives in danger. And that is one of the messages that I took to Washington, D.C., when I met with the senatorial offices and members of Congress.

KIRA KAY: Twenty members of Congress have expressed their worries over the subpoenas, including Sen. John Kerry, who urged the State Department to work with the British to revoke their request, writing he was concerned about its impact on the Northern Ireland peace process.

MARTIN MCGUINNESS, Northern Ireland deputy first minister: Anybody reading the news reports from the United States here will be very concerned about how that situation is being used by elements who are not favorably disposed to the peace process, in order to use that situation to destabilize the progress that we have made.

KIRA KAY: But the legal battle is working its way through the American court system. Boston College sued to quash the subpoenas, but did agree to allow a judge to read transcripts of the interviews, despite the researchers’ strong objections.

And, in December, that judge found that the U.K.’s request concerned serious allegations of murder that weighed strongly in favor of disclosure of the confidential information. Boston College is now appealing that decision.

JACK DUNN: It is a struggle between obligations. We have an obligation as a university to uphold the enterprise of oral history and academic research, which we value greatly.

And yet we understand the government’s obligation to comply with the treaty with Great Britain. And I also feel an obligation for the McConville kids, who are looking for answers to their 40-year-old question regarding their mother’s horrific murder. So it’s very difficult.

KIRA KAY: Despite the impact this case could have on Northern Ireland and on American law, it remains unclear whether the information on the tapes could actually be admitted as evidence in any prosecution.

But Helen McKendry and her husband wait and hope they will soon have the truth, if not the justice, for what happened to her mother.

JUDY WOODRUFF: Oral arguments in the case begin next month in the Circuit Court of Appeals in Boston.

Roughly 14 years have passed since the signing of the Good Friday peace accord, which ended decades of bloody conflict in Northern Ireland. But that doesn’t mean the area is free of conflict, tensions and even violence. Jamie Smyth of the Financial Times talks about the situation. His recent article is called “A Peace to Protect.”

Leonard Lopate (LL): Roughly fourteen years have passed since the signing of the Good Friday Peace accord that ended decades of bloody conflict in Northern Ireland. But that doesn’t mean the area has remained free of conflict, tensions and even violence. We’re joined now by Jamie Smyth of The Financial Times whose article about the situation is called A Peace to Protect. We have a link to it on our show page

Jamie, welcome to today’s Undereported segment.

Jamie Smyth (JS): Good afternoon.

LL: How long did the conflict over in Northern Ireland go on before the 1998 peace accords?

JS: It was a thirty year period of violence called The Troubles in Northern Ireland which began in the late 1960’s. It sparked out of civil right movements where the situation in Northern Ireland was that the Catholic minority population were excluded from the avenues of power, they suffered jobs discrimination and discrimination in housing. And the civil rights movements started at the end of the 1960’s and it led to clashes with the Protestant dominated government there. And we had the formation of the Irish Republican Army at that stage and three decades of conflict continued from there.

LL: Now the accords were signed in 1998. Is the peace process still technically in place?

JS: Certainly. The peace process is in place and Northern Ireland is a much changed place since that peace agreement was signed. That really brokered an historic compromise between the majority Protestant community and the minority Catholic community. And it ushered in a period of self-government.

So what we’ve seen is that we’ve had fifteen years of relative calm and peace and that has created alot of inward investment into Northern Ireland. So you have had alot of jobs created, the cities are very much changed places… it’s almost a normal life that’s been created there which wasn’t possible during The Troubles.

But over the last three or four years what we’ve begun to see is a slight uptick in violence perpetrated by Republican dissident groups. These are groups that have split off from the former IRA and they’re pursuing a policy of trying to get a united Ireland through violence. We’ve seen several murders and then earlier this year we had a huge bomb which was diffused outside the border town of Newry. This bomb was bigger than the Omagh bomb which was the single biggest act of terrorism during The Troubles in 1998 which killed twenty-nine people.

So there’s alot of concern that this increase in dissident activity could usher in a new era of violence in Northern Ireland.

I think the concern is increased because we’ve also got an economic crisis at the minute in Ireland, and the UK and Northern Ireland.

So we’re seeing a very difficult economic situation, an increase in unemployment and the potential for dissident groups to try and lure young people onto the path of violence again.

LL: So economic problems have led to religious based tensions? Or renewed religious-based tensions? I mean is this still a Catholic-Protestant conflict? Or are we seeing something else developing?

JS: What we’ve seen is that despite fifteen years of peace the two communities still live in very different communities and sectarianism remains a very strong part of life in Northern Ireland especially in working class communities.

So there are large working class estates where you wouldn’t have different communities living together. The Catholic and Protestant communities live on these estates separated out from themselves and there still is alot of conflict and division there. I think the danger is that in some of these most marginalised estate, especially in the Republican areas which are the Catholic areas, you are beginning to see a certain breakdown and disenchantment with the peace process and with the Sinn Féin party which is now part of the government in Northern Ireland and which was previously linked to the IRA.

So there’s a fight going on for the hearts and minds of working class young people in some of these estates and you’re seeing a growing disenchantment with the peace process and Sinn Féin and the peace process as the economy worsens.

LL: Well, the economy has worsened both in Ireland and in the UK. Are these people feeling a kind of a pinch from both sides?

JS: I think what the people are feeling in these working class communities….you know for the article that I wrote I traveled to several different estates in Belfast and up in (London) Doire. And what you see are communities where the peace dividend and investment actually never really reached them. So these are communities of people where you’ve got six out of ten people are economically inactive. There are very little jobs…so for example the week in July when I traveled up to these areas there was a piece in the paper about how there were two thousand three hundred applications for fourteen jobs at a furniture store.

So the situation is compounded by the fact that there aren’t that many jobs. And also there’s a certain frustration with Sinn Féin, which is now in government, and which previously would have run these Republican areas and been very, very strong there.

Because it’s entered government now and it supports the police, the police are in these areas alot and the community has alot of difficulties with them. And also they see that Sinn Féin has, to a certain extent, given its own supporters a lot of the jobs, a lot of the funding.

So there’s a real frustration that Sinn Féin has sold out and a united Ireland has not been brought about.

But it would be wrong to over-exaggerate this. This is particularly in the marginalised working class communities; places like Doire, Lurgan, some parts of Belfast where this sort of fight on the ground for the hearts and minds of the working class communities is going on.

LL: Isn’t the unemployment rate in Northern Ireland much lower now than it was in 1982 when it was at twenty percent? I thought that the peace agreements helped the economy? Companies started going in there…there was alot more investment.

Has that all died down? Is that partly because of England’s problems today and the fact that Ireland has a pretty sick economy right now? (Ireland…it’s neighbour).

JS: Really what you saw after the 1998 peace agreement was a real decade of rapid growth in the economy.

Unemployment fell very strongly. And alot of people got jobs in the construction industry because you had a huge property boom all across the island of Ireland and in Northern Ireland.

What we’ve had since is a major property bust in Ireland and Northern Ireland. Just for an example, house prices have collapsed by more than fifty percent in these communities and hundreds and thousands of construction workers have lost their jobs.

And of course it’s the working class communities where alot of people had gotten jobs in the construction industry and they are now not available. So you’ve got alot of young people with very little to do and they’re vulnerable to being recruited by dissidents.

But also I think it’s not just an economic issue it’s an ideological issue.

What’s happened is that as Sinn Féin has gone into government and supported the police in Northern Ireland you’ve had people becoming disenchanted with the fact that they’re becoming an establishment party in Northern Ireland whereas they used to be a party of revolution.

So for people that haven’t really benefited in the peace dividend and the boom they are getting increasingly disenfranchised with that and that’s where you’re seeing these armed groups beginning to recruit some young people.

LL: Are there Protestant militant groups as well?

JS: Yeah. There sure are. The UDA and UVF are still around in Northern Ireland. And just last Summer you saw huge riots out in East Belfast which were instigated by Ulster Volunteer Force which are one of the main paramilitary groups.

They’re still taking part in punishment beatings of young people who step out of line in their communities. And they’re still involved in crime, extortion, rackets.

I think on both sides of the community these paramilitary groups are anxious to keep control of the working class areas because it brings in a regular income. And it also gives them status within their own community. And that’s one of the big problems here that since the peace agreement some of the paramilitaries that lost their sort of goal in life and they see clinging on to these sort of dissident groups as a way to maintain power and lifestyle.

LL:The Detail, which is an online investigative wing of a Belfast TV station, did an analysis of government data and found that sixty thousand members of the public in Northern Ireland legally own over a hundred and forty-six thousand firearms. I’m assuming there are alot of illegal weapons out there as well which could lead to a seriously inflammatory situation. We have just moments left but has David Cameron’s approach to Northern Ireland been different than his predecessor’s?

JS: Well certainly on the ground in Northern Ireland you get alot of frustration from community workers who feel that the British and the Irish governments have taken their eye off the ball. David Cameron has been criticised for not meeting the leaders of the Northern Irish executive. In fact, meeting them less than those leaders have met Barack Obama since he was elected. So there’s been a very much been a hands-off approach by both government as they struggle with their own economic problems. And there’s a hope that they’ll be more re-engagement there. And also you would see that the issue certainly has gone down from America which was a huge supporter of the peace process.

LL: Jamie Smyth’s article A Peace to Protect in The Financial Times. You can find it on our show page; we have a link to it there. My great thanks to you for talking about The Troubles in Northern Ireland on today’s back story segment. It’s been a pleasure, I guess…(quips) that’s kind of scary and sad…..

JS: (laughs) Thank you.

(Interview ends 12:36 minutes)

Northern Ireland: A peace to protect
By Jamie SmythFinancial Times
August 14, 2012

A worsening economy could increase the allure of paramilitaries

Andrew Allen was playing computer games with his nephew in February when gunmen shot him through the living room window, leaving the father-of-two dying in a pool of blood.

The 24-year-old is the latest person from Northern Ireland to be killed by so-called dissident Republicans opposed to the Good Friday peace accord agreed in 1998.

That agreement had made Northern Ireland a self-governing part of the UK and brokered a historic compromise between the Protestant majority, which favours retaining the link to Britain, and Catholics, who traditionally favour a united Ireland. The deal sparked widespread optimism that one of Europe’s most intractable conflicts – three decades known euphemistically as “the troubles” – was finally at an end. But violence still simmers and community leaders fear Northern Ireland could slide back if a weakening economy helps paramilitaries win recruits.

“When the peace was agreed, I said to myself: ‘Thank God my boys are not growing up in the middle of all that violence.’ But then they murdered Andrew and tore my family apart,” says Donna Smith, Mr Allen’s mother, speaking in her living room in the city of Londonderry, known to Catholics as Derry. A photograph of her son hangs prominently on the wall.

Mr Allen was targeted by a vigilante group called Republican Action Against Drugs (RAAD), composed of former members of the Irish Republican Army – the guerrilla group that fought British forces during the troubles and later disarmed during the peace process. While the level of violence is still well below the ferocity seen during the worst periods of the conflict, and has even improved since 2002, many people warn that politicians now need to refocus on Northern Ireland’s festering divisions.

Peter Sheridan, chief executive of Co-Operation Ireland, a charity that works with young people in working-class communities, says the economic downturn provides a fertile recruiting ground for paramilitary gangs. The crisis is also diverting the UK and Irish governments from the peace process at a particularly dangerous time, he says.

“My fear is that they work hard to fix the economy but they take their eye off the ball in Northern Ireland and paramilitary gangs get stronger. The growth in violent extremism has the potential to be a longer-term threat to the economy than the current recession. The dissidents are growing in strength and capability,” says Mr Sheridan, a former police officer in Northern Ireland.

His comments follow recent criticism of British prime minister David Cameron by Martin McGuinness, deputy first minister in the Northern Ireland assembly, who accused him of making a “serious mistake” in failing to engage with Northern Ireland in the same way as his predecessors.

Mr Allen’s home town of Londonderry has been one of the focal points of discontent. For several nights in July, youths fought police on the Galliagh estate, throwing petrol bombs and setting bins and tyres alight. A 31-year-old man was shot in the legs by RAAD in a suspected dispute between rival dissidents. Since 2008 there have been 40 punishment shootings or “knee cappings” in Londonderry.

Some of the incidents over recent years have harked back to the worst of the troubles. In April the police discovered a 600lb bomb, which was more powerful than the 1998 Omagh bomb that killed 29 people.

This followed the murder in March 2009 of Stephen Carroll, the first member of the Police Service of Northern Ireland (PSNI) to be killed by dissidents. Two British soldiers were murdered by dissidents in the same month, shot dead as they collected pizzas from a delivery man. In 2011 a car bomb killed a Catholic policeman.

These killings came as a shock after years of economic boom in which there had been a lull in violence.

Peace provided an economic dividend by attracting foreign investment, particularly in the software, IT and aerospace sectors. There have been large redevelopment projects in Belfast and in Londonderry, which has been named the UK’s inaugural city of culture for 2013. Northern Ireland’s unemployment rate is 6.9 per cent, which is below the UK’s 8 per cent and has improved greatly from 20 per cent back in 1982. But some working-class Catholic communities are showing a growing alienation from the peace process and from Sinn Féin, the Republican party linked to the IRA that is now part of the Northern Ireland government. Rioting, attacks on police, punishment shootings and threats against Sinn Féin members are common on housing estates in the Ardoyne area of Belfast, Kilwilkie in Lurgan and several estates in Londonderry.

Protestant communities also have violent paramilitaries engaged in rioting, drug-running, assaults and murder. However, security forces say the vast majority of casualties from shootings – in fact, all 33 cases in the 12 months to March – are carried out by Republican groups. The Republicans also attract more attention in the appraisal of security in Northern Ireland because they offer more ideological justifications for their use of violence. Tensions are also raised by internal schisms, with some Republicans frustrated that Sinn Féin has joined the establishment before uniting Ireland.

Tommy McCourt, a Catholic community activist who works at the Rosemont Resource Centre near Londonderry’s deprived Creggan estate, says Sinn Féin is losing its grip.

“People were told they would have a bright future and it would be a land of milk and honey with jobs from the US flowing into Derry. Now the economy is going down big-time and people are asking: ‘What came out of the peace process for us?’ Fuck all is the answer,” says Mr McCourt, a former member of the Irish Republican Socialist Party, which rejects the 1998 peace deal.

Mr McCourt, who keeps a samurai sword in his office, which he jokes helps concentration during meetings, explains that Sinn Féin is seen as too entrenched in Northern Ireland’s governing establishment. The party is also trying to forge a greater mainstream role in Dublin, where it is competing to become the biggest opposition party.

Long-term unemployment is rife on the Creggan estate, with six out of 10 people classed as “economically inactive”. In a sign of the deepening recession, 2,308 people applied for 14 jobs on offer at a new DFS furniture store.

. . .

This hardship has coincided with disenchantment among hardline Republicans over issues ranging from opposition to policing, Sinn Féin’s control over jobs and resources in working-class areas and the imprisonment of several high-profile Republicans, including Marian Price – an IRA militant who helped plant bombs in London in 1973 that killed one person and injured almost 200.

This climate has presented opportunities for hardline groups of dissident Republicans, who oppose the peace process and aim to usurp Sinn Féin and exert control over marginalised communities.

“There are various groupings which have taken on the ideology around violent republicanism but there are no strict demarcation lines between the groups. In different areas it depends on who the lead figures are, who their associates and relatives are and long-term associations, which sometimes have been made in prison,” says Drew Harris, assistant chief constable of the Police Service of Northern Ireland.

He identifies a surge in dissident activity from 2007 when the Democratic Unionist party and Sinn Féin agreed to share power and members of Sinn Féin began to take their seats on local policing boards. But he says the downturn and weakening construction sector also had an impact because job opportunities were scarce.

Until now, co-operation between dissident groups has been limited and there has been no central command structure – a factor that made the IRA such a potent guerrilla force. But in a statement released by dissident Republicans to the Guardian in July the Real IRA, RAAD and self-styled Óglaigh na hÉireann said they were merging under the banner of the IRA.

It is difficult to determine how coherent they can be given their different geographical strongholds and history of internal feuding.

The PSNI says the dissident threat is not as severe as that posed by the IRA during the troubles, but it acknowledges the danger. There are probably less than 1,000 operational dissidents and closer co-operation with the Irish police is helping to put many in jail. About 180 dissidents have been charged with offences, some with crime-related charges rather than terrorism, says the PSNI.

“Crime is important because it provides funds. Some of the dissidents have got wedded to the lifestyle and there is an element of personal profit. It is often convenient to drape themselves in the cloak of republicanism,” says Mr Harris, who cites fuel and cigarette smuggling, extortion and robberies as staple activities.

Sinn Féin has recently stepped up its criticism of dissidents, describing them as “enemies of Ireland”.

“They (dissidents) have no strategy that makes sense and have minimal support and when they try to stand in elections they have been wiped out,” says Gerry Kelly, a former IRA man who received a life sentence for his part in a 1973 bomb attack in London and is now a member of the Northern Ireland assembly.

He says the dissidents are very different from the IRA because they are run by individuals ruling in small fiefdoms without any central command or rules and regulations. A lack of support means they will not be able to pull Northern Ireland back.

“But anyone with a gun or a bomb can do great damage. The Omagh [bomb] is the perfect example of that and unfortunately that could happen again,” says Mr Kelly, who had his arm broken when he attempted to stop youths protesting in the Ardoyne area.

. . .

On the streets of the Rosemont and Creggan estates in Londonderry and the Ardoyne in Belfast, the battle for control is visible in the graffiti and murals on the walls of houses and shops. Anti-Sinn Féin graffiti has been painted over in several places. Graffiti both for and against the dissidents has been daubed over the walls.

“Some young people really hate the dissidents because they tend to be the victims of their attacks but others join them and are sympathetic to their cause,” says Darren O’Reilly, a Londonderry community worker who takes young people ice skating.

Colm Bryce is a member of a group called “RAAD – Not in Our Name”, which holds rallies to draw attention to the dangers of resurgent violence.

“A lot of us thought after the Omagh bomb, they were finished but now they are coming back and threatening peace,” he says.

POLICE attempts to access a secret vault of interviews with scores of Troubles terrorists have been delayed after a renewed legal attempt to block the PSNI.

The police, who are reinvestigating the IRA murder of Jean McConville in 1972, have already won a series of legal challenges to their request for access to interviews held at Boston College in Massachusetts.

Detectives believe that the interviews contain details of how the mother-of-10 was murdered and came under pressure to reinvestigate the atrocity when it emerged in 2010 that former IRA commander Brendan Hughes had told researchers that Gerry Adams personally ordered Mrs McConville’s murder.

The Sinn Fein president, who denies ever being a member of the IRA, has denied Hughes’ claim.

Journalist Ed Moloney and IRA man-turned academic Anthony McIntyre were responsible for most of the interviews, which were given by former paramilitaries on the understanding that their sometimes candid contents would not be released until their death.

The PSNI initially requested access to the vault last March and since then has faced a series of legal challenges to its request, initially from Boston College and then from Mr Moloney and Mr McIntyre.

After a series of court battles, the First US Circuit Court of Appeals ruled last month that the interview tapes should be handed over.

That decision was criticised by leading Irish American figures and by Mr Moloney and Mr McIntyre.

However, it was welcomed by both unionists and the family of Mrs McConville who have not given up on their quest for justice.

At the time of that court ruling it was expected that the tapes would be handed over within weeks.

However, a statement released by Mr Moloney and Mr McIntyre said that two attorneys acting for them had filed papers on Monday in the First Circuit Court of Appeal.

The legal papers requested a rehearing of their case “en banc”, that is before the entire bench of the court rather than a panel of judges.

Such rehearings are only permitted where there is an issue of great public importance at stake.

Among Mr Moloney and Mr McIntyre’s arguments are that the case has significance in that it gives a foreign police force greater power over US citizens than American law enforcement agencies.

Their submission also argues that as the PSNI is about to get access to the tapes through a mutual legal assistance treaty between the UK and USA, the case has implications for other subpoenas from any of the 62 countries which have similar treaties with the US.

Mr Moloney said that the lawyers were working pro bono on the case.

A PSNI spokesman said: “It would be inappropriate to comment while legal proceedings are continuing.”

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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